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Getty Images Letter Forum / Re: Extortion letter/s from August Images
« on: February 05, 2015, 10:16:19 PM »Yes, that is the case, it's a celebrity photo. So all of this may be more serious?It's not just a "celebrity photo". Celebrity photos can include papparazzi shots and so on. Those can be valuable-- but some are nearly interchangeable and of limited market value. But August images are often clearly staged images created by well paid photographers who have been hired to create advertizing campaigns, magazine covers, and so on.
It certainly makes it difficult to determine fair market value on my end.... to even counter offer with, if I decided to go that route.
To gauge the 'risk'.
On the one hand: August Images does carry truly valuable images. They do need to protect their images from being posted because those images have actual customers who don't want the value of the images devalued. It's quite likely all the images are registered, and it's likely that if they pursued this, they could prove value of the particular image you copied. The argument wouldn't be some general argument about the value of collections of the business model as a whole and so on. It would be showing the value of that particular image.
On the other hand: we don't have much history on August. It may very well be that they drop things if people don't pay. After all: They actually do have paying customers for these images. So, their business model isn't to have a collection of near valueless images bymake money by scaring people into over-paying. Given that, it may well be that they would drop this rather than suuing -- and that their real goal is to just get people to take these down. ( Scaring them enough to get the story out that you shouldn't just pick any old image to post would likely be part of their motive too.)
Factors making them (or anyone) less likely to sue are the the fact that you used a thumbnail -- which by it's nature has a lower commercial impact on saleable uses and that can affect the size of awards they could get. After all: the image is small.
Other factors? I can't say, I don't know enough about your site to know how they might view it overall. I also don't know if the company is in a situation of wanting to send a message and so on.
As for the rest: I don't know how the "fair use" defense would pan out. I don't know enough about how strong the argument your use was "fair use" would be in court. After all: they could point out that you could have chosen any image at all to demonstrate what could be done with photo-shopping. You could have taken your own image of some young lovely and photoshopped her. The question they would ask you -- and the judge would want to hear the answer is: Why use that image? Why not some other image?
When it comes down to it: the risks are something you need to judge. I'd gauge this as "more risky" than the typical Getty Letter because (a) typical August images are more valuable and marketable than typical Getty Images images and (b) we don't know much about how August generally behaves.
How risky is it? That's the unpredictable thing. But really, no one here can tell you much more.